P (A Child: Fair Hearing)

When deciding whether to adjourn proceedings after a party loses legal representation, the court must assess the fairness of the proceedings as a whole. It must strike a fair balance between all interests, including the party’s ability to present the case effectively, the seriousness of the issues, the interests of any child and the effects of delay.

Legal representation is not invariably required by equality of arms. The court may consider the actual forensic disadvantage caused by its absence and whether fair participation can be secured through the conduct of the hearing. On appeal, the question is whether the decision was unfair, rather than whether it fell within a broad discretionary range.

The mother appealed against care and placement orders concerning her young child. During the final hearing, the Family Court admitted a late email recording the mother’s request for protection from the father. Her lawyers then withdrew for professional reasons. The Recorder refused to adjourn, and the mother completed the hearing with a lay advocate but without legal representation.

After delivering judgment, the Recorder entertained but refused an application to reopen the hearing. The mother contended that continuing the trial had infringed natural justice and her rights under Articles 6 and 14 of the European Convention on Human Rights, particularly given her learning disability. The central issue was whether the proceedings as a whole had been fair.

1. Appeal dismissed. A legally valid decision can arise only from a fair hearing. The controlling question was whether the proceedings as a whole had been fair, assessed by reference to natural justice and Article 6 of the European Convention on Human Rights. The assessment was fact-sensitive and did not involve the mechanical application of a checklist.

2. When deciding whether to adjourn, a court must strike a fair balance between all interests. A child’s interests and the effects of delay are relevant, although welfare is not paramount in that procedural decision. Equality of arms does not require every party to be legally represented, but Article 6 requires a genuine ability to present a case effectively. The seriousness of the consequences and the appearance of fairness also matter.

3. An adjournment is a case-management decision with which an appellate court will be slow to interfere. Nevertheless, the appellate question is whether, in its own judgment, the decision was unfair in the circumstances identified by the trial judge. It is not merely whether the decision fell within a broad range of permissible discretion.

4. The late admission of the solicitor’s email had been unwise and unnecessary. Under rule 22 of the Family Procedure Rules 2010, admissibility did not oblige the court to receive evidence. The court should have controlled the evidence in light of the mother’s vulnerability, the alleged domestic abuse, the father’s intimidating behaviour and the ample existing material. That ruling was not itself under appeal.

5. Despite those events, the mother had been represented for almost the whole hearing and had already presented nearly all her oral evidence. The decisive professional and written evidence was already before the court. The remaining absence of representation caused limited forensic disadvantage. The father’s lawyers advanced a broadly common case, the lay advocate assisted the mother, and the Recorder made procedural adjustments. Against that stood serious prejudice from further delay to a child whose proceedings had already substantially exceeded the statutory timetable.

6. The Recorder should not have entertained the post-judgment reopening application. Once final judgment had been handed down, she could not in substance hear an appeal against her own refusal to adjourn. The mother’s remedy lay in an appeal. The refusal to reopen was nevertheless correct.

7. Viewed overall, the hearing had been fair. There was no breach of natural justice or Convention rights in the making of the care and placement orders. King and Lewison LJJ agreed with Peter Jackson LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court held that the proceedings had been fair overall, although the email should not have been admitted and the post-judgment reopening application should not have been entertained.

2. Family Court at Coventry: Recorder Arthur refused to adjourn the part-heard final hearing after the mother’s lawyers withdrew. She subsequently refused to reopen the hearing and made care and placement orders.